A Judicial Perspective on
Public Access to Case Law
on the Internet
His Honour David J. Harvey
District Court Judge
Otahuhu, New Zealand
A Commentary to the paperdelivered by Judge Harvey at the 2nd AustLIIConference on Computerisation of Law via the Internet, Sydney, Australia, 21-23 July 1999.
In my paperI have pointed to developments in Information Technology in New Zealand. I have outlined the developments in the use of computers by the Judiciary and what I see as some of the advantages of Information Technology for Judges. I have discussed some of the difficulties that have accompanied the establishment of free legal information on the Internet. I have pointed specifically to the user pays culture for information obtainable from the Internet. I have suggested that this 'culture' is an impediment to getting decisions of New Zealand Courts available on online for free in New Zealand.
The malaise goes much deeper than that. It effects the entire Information Technology scene in New Zealand and the development of what is referred to as 'the Knowledge Economy'. As I understand it, the Knowledge Economy will be technology led.
In my paperI made reference to the provisions of computers in schools. This is to be applauded. Similarly, we see great steps forward in providing the Judiciary with computers. Regrettably, the approach, however, seems to be that the school or other recipient is provided with a tool but nothing is done to teach him or her how to use it. Much depends, within the education environment, upon the school.
For example, at a primary school in an affluent Auckland suburb, $140,000 was spent on PCs, networks, multi-media learning labs and PCs in classrooms. The teachers were sent to intensive training programmes at a cost of $23,000 plus. It turns out that many of the teachers are reluctant users. Many teachers use computer-savvy children to help them out with problems. Others are hung up on 'inappropriate' material on the Web and therefore do not incorporate it into classroom activities. This problem has arisen in an affluent area. One wonders whether or not there will be a buy-in to IT education from teachers in the lower income groups. I shall return to the question of content shortly.
Newspaper reports indicate that New Zealand is being left behind in the IT and Knowledge Economy stakes. A report by Chris Barton in the NZ Herald for 30 June says:
'A report delivered to Information Technology Minister Maurice Williamson last week warns the country's lack of IT policy will become known as the 'New Zealand syndrome'.
The article goes on to report that New Zealand may be an example of how a developed country fails to make the transition to the knowledge-based economy. The comment was made that New Zealand will end up as an amusement park for the rest of the world of what not to do.
In an article entitled 'The Wise Leave Words of Wisdom in the Wildernes' in InfoTech Weekly, Issue 401, Adrienne Perry points out that calls for the development of the Knowledge Economy had been made for over 10 years by leading New Zealanders and overseas experts (electronics millionaire Sir Angus Tait from Canterbury and Professor Porter from Harvard to name but two), but no notice seems to have been taken by a Government preoccupied with;
'backroom coups, and ongoing allegations of corruption in high places - in other words, damage control, short-term political gain and political survival - life must be far too enervating to come up with a vision for the twenty-first century over breakfast'.
The Info-Tech article goes on to make the point that for the last two years it has circulated in Wellington and has grown in size and in page numbers. The article comments that it seems puzzling that its pages were not read by politicians in the paper's home town and that its increase in size (and therefore significance to the community) did not warrant a flick of the on switch.
What is happening by contrast in Ireland, which has set itself up as an IT Mecca, can be viewed as great forward thinking and planning and not just the revenge of an embittered nation which has finally proven that all those Irish jokes are a lie. But then when one looks at the writers that Ireland exported to teach the English how to use English - Sheridan, Yates, Wilde, G B Shaw and Joyce to mention but a few - a country which so values art, especially of the linguistic sort that it offers tax relief for writers, we have a country which is not new in demonstrating forward thinking.
So why the problem with IT? There is something of a suspicion with the whole computer industry, it would seem, fostered by some urban myths and some true stories. Computers go on the blink too often to be truly reliable. Software is sold that does not work and needs patches. The software industry is the only industry that does not seem to get caught by the Sale of Goods Act or the Fair Trading Act for selling defective product. And then there is the cost of IT projects.
Some of you may be familiar with the trials and tribulations of the NZ Police computer system called INCIS - a project the budget of which has ballooned even bigger than the Hindenburg. As if that were not enough there is the Land Information computer system blow-out (for the full story see InfoTech Weekly, Issue No 398). As you might expect there is more than a little suspicion of expending large sums of money on IT projects which become the cyber version of an astronomical black home for every increasing amounts of (often public) money. The difficulties that have been experienced with the projects to which I have referred, together with other projects, such as the National Library, mean that the new IT developments within Government Departments are treated with scepticism both in the newsmedia and when it comes to a bid for funding.
Thus, part of the problem that we have in New Zealand is the scepticism that surrounds large-scale public IT projects which suffer budget overruns.
Another part of the problem is that there has been no clear articulation of an IT vision, except by Minister of Information Technology Maurice Williamson who is viewed, along with others of us who espouse the IT cause, as an over-enthusiastic IT 'nerd'. Many people in New Zealand still equate IT with bearded, thong-wearing intellectuals who communicate in the language akin to binary-speak, or pimply, horn-rimmed bespectacled teenagers who hack into other people's computers or drag down porn by the megabyte.
On the subject of Internet content, the Internet is perceived by many, a perception fostered by an enthusiastic, anti-tech news-media, as a haven for weirdoes who constantly seek bomb recipes or kiddie porn. From time to time the howl goes up for Internet regulation as yet another prosecution of a pornographer who has had access to the Internet hits the newspaper pages. I have yet to see the news article which will inform the public of the opportunities available on the Internet to study, for example, the frescoes of Michelangelo which adorn The Vatican. Writers such as Peter Sinclair in the NZ Herald and Paul Reynolds in Sunday Star Times attempt to redress the balance in the weekly articles on the Internet, but public perception is shaped, more often than not, by what appears on the front page or the first fifteen minutes of the TV news broadcast.
Many people feel that the less Government involves itself in the lives of individual citizens the better. However, insofar as IT and the Knowledge Economy are concerned I consider this is one of the occasions where the Government can take on a leadership role. There should be a commitment to IT and to the Knowledge Economy. It is a commitment which is expensive and which will require ongoing large sums of money. Without that commitment a country may drift further and further away from the cutting edge of progress[ 1]. A few years ago people sniggered at the United Kingdom for its lack of commitment to IT. That has changed. In the legal information area, Britain is well ahead of New Zealand and further plans for the use of IT in the Courts are being developed.
Let me shift from the big picture to the Internet. I am of the view that the Internet presents the biggest revolution in communications since the telephone, if not since the invention of the printing press by Gutenberg. At the last the information systems of the world are within the reach of individuals who have computers and an ISP account, who have access an Internet-linked public library.
The cost of an Internet connection is low. For A$31.96 (NZ$39.95) per month (including GST) I have an unlimited flat rate subscription. That is all I pay. I use a special dedicated phone line into my home and because of a thing called 'The Kiwi Share' every call that I make to my ISP is free. The information world of the Internet is mine to use for as long as I like each day.
And Internet use is growing day-by-day. My ISP is still one of the few true flat rate service providers. A price war has occurred recently and the major ISPs in New Zealand - Telecom (the largest) and Clear (Telecom's major competitor) - now offer a form of flat rate Internet access, again for NZ$39.95, although both providers reserve the right to pull the plug on your connection after a certain number of hours or if, in their opinion, the data traffic load is heavy and likely to cause problems for other users of their Telco lines. So far so good.
So what is the Kiwi Share? When the Government privatised Telecom over 10 years ago it retained what was called the Kiwi Share which is held by the Minister of Finance. This provided, among other things, that Telecom had to hold line rental increases to a certain level each year and it had to maintain the position which was that local calls were free. It could offer alternatives to local calls for free but the bottom line was that local calls were to be free and should remain so.
Then the Internet arrived and people found that they could use the home phone line for data calls. About two years ago, Telecom floated the idea of charging for data calls as distinct from voice, but a number of issues arose, not the least of which was the Kiwi Share. It was argued that a call to an ISP is a local call, it is protected by the Kiwi Share. So that idea was dropped - for the time being.
Telecom then undertook a huge marketing drive to get people to install an extra line in the home - a second line for the kids to use; for the fax, for the Internet. The offer was tempting, and if you could afford the line rental - great. Use it for The Net, local calls to the ISP, Kiwi-Share means no charge and the family is happy because the voice calls still get through.
Then earlier this year the price war began.
Following that, on June 10, came the announcement that Telecom would require all ISPs to use numbers that began with a prefix 0867, and to encourage subscribers to use those numbers, a 2 cent per minute charge would be levied after a user had been online for more than 10 hours per month[ 2].
The 0867 number is advanced as an alternative to the free calling option and in Telecom's view preserves the free calling option. However, there is a huge resentment to what was a local call would soon be the subject of a charge. Another issue is that Telecom stands to save $100 million in payments to competitor, Clear, for interconnection agreements - a complex area and not understood by many.
There are some who fear that the introduction of the 0867 number will serve to ring-fence the Internet community so that Telecom may renew its moves to charge for data on the basis that free data calls were not contemplated by the Kiwi-Share[ 3]. No one will be using normal local numbers to connect to their ISPs and the market capture will be complete.
The Government has so far remained silent on the issue. It has neither condoned nor condemned Telecom's action. This would seem to be symptomatic of a lack of understanding of the significance of the Internet as a vital part of the Knowledge Economy, and of the potential impact of Telecom's actions - both in the short and in the long term.
I hasten to add that nothing that I have said should be interpreted as any personal or legal statement of opinion on Telecom's actions.
When you look at the big picture that I have described and the single example of the 0867 Internet access number proposed by Telecom you can see the difficulties and problems that seem to beset progress in IT in New Zealand. In the opinion of some commentators there is no coherent, articulated IT vision or strategy on the part of the Government. It is no wonder that the decisions of the New Zealand Courts are not yet online, free to the public from a New Zealand-based site.
The question may also be asked with regard to the free on-line availability of legislation. In my paper I made reference to the call for submissions on how to broaden public access to legislation. The Parliamentary Counsel's Office received more then 90 submissions in response to its discussion document 'Public Access to Information' .
It was reported on Monday that:
'THE Parliamentary Counsel Office has asked consultants PricewaterhouseCoopers to help it work out how New Zealand laws could be made available to the public over the Internet.
The PCO had been expected to issue recommendations last month on how to proceed with its initiative to broaden public access to legislation.
Instead it has commissioned PricewaterhouseCoopers to look at the alternatives and report back to the government body by early September'.[ 4]
Many of the submissions called for legislation to be published on-line and made available to the public without charge. Julia Kennedy, manager of support services at the Parliamentary Counsel's Office said:
'(T)hat many of the submissions expressed the view that easy access to legislation was a 'democratic right'.
But she says the cost of access to electronic legislation is a decision for the government, and the PCO has to decide how it could best be implemented before this can be discussed.[ 5]
It must be a matter of concern that there should be any question that Internet access to legislation should be OTHER than free. While other countries move ahead, New Zealand still debates the issue of public free access to legal information.
In my paper I made the following comment:
'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'.
I am pleased to be able to advise that today the Department for Courts in New Zealand has announced that New Zealand Court of Appeal judgments will be made available free of charge over the Internet. In a press statement it has been stated that the first step is to provide full text copies of Court of Appeal judgments. High Court and District Court judgments will eventually also be made available. Judgments will be made available by way of AUSTLII. The service will be available from today 23 July 1999 with judgments from June 1999 being made available. Inclusion of an archive of judgments prior to June 1999 is being investigated.
This is a significant and laudable step on the part of the Department for Courts. In my paper I have been critical of what appears to have been little or no progress in getting New Zealand decisions onto the Internet. But in this changing world things change. AUSTLII will now truly become the Australasian Legal Information Institute. From the point of view of those of us who have been pushing for judgments of New Zealand Courts on the Internet to be freely available, this is a significant milestone and one that is to be applauded. Clearly it is the beginning of the journey of making all of the decisions of all of the New Zealand Courts freely available on the Internet.
The above remarks were delivered to the 'Law and the Internet 99' Conference in July 1999. Since then there have been some developments.
Although the Minister of Finance holds the 'Kiwi Share' in Telecom, the approach to Telecommunications Regulation in New Zealand has been 'light-handed'. Notwithstanding the considerable concerns that had been expressed about Telecom's moves to create an internet specific 0867, particularly by the on-line community, little visible action was evident from the government. Telecom maintained its position that data was not covered by the Kiwi Share which deals (among other things) with a local free-calling option. The matter was finally resolved by an exchange of letters between the Government and Telecom which contain assurances that Telecom will not use the 0867 number as a stepping stone to introducing charges for local data calls. Telecom considers that it has made a concession in this regard and still maintains its position that the Kiwi Share does not apply to data calls.
The country goes to the polls on 27 November. Some of the parties have pledged to re-examine the Kiwi Share and the Telecommunications environment. It is clear that the matter is not at an end, and the future of free local calling access to the Internet, whilst protected for the moment by the exchange of letters, is not definitively settled.
The issue of access to legislative material also remains unsettled. The consultants have reported to Parliamentary Counsel's Office, but that report has not, to my knowledge, been released. As far as I am aware, there has been no clear commitment to the principle of making annotated and up to date legislative material available to the public without charge on the Internet.
1. After this part of the commentary had been prepared, the following appeared in Computerworld News:
Friday July 16
Govt shift may spell trouble for Telecom, says economist.
Williamson's conversion only the tip of the iceberg, says Easton.
By Paul Brislen - AUCKLAND.
Maurice Williamson's ' road to Damascus' conversion may spell trouble for Telecom in the coming months, says economist and commentator Brian Easton.
At a recent press conference Williamson said: 'For someone like me, who has always been a great advocate of the free market, this is like swearing in church, but the government needs to get more involved'.
Easton points to the ongoing wrangle over Telecom's monopoly position in the market as a classic example of an area that will feel more intervention in the future. 'I suspect at this stage the current Internet crisis is being driven by the fear that Telecom is misusing its monopoly position again'.
Easton says Telecom had been required, as a state-owned enterprise, to operate two distinct branches. 'If I say lines and electricity you'll know what I mean'.
Dividing Telecom into two divisions, splitting control of the backbone off from the rest of the business, was an attempt to regulate its monopoly powers, but as soon as it was privatised those two functions were combined again.
'[Former PM] Geoffrey Palmer told me that when he chaired the cabinet committee on privatising Telecom he didn't receive a single paper about the regulatory implications'.
But Easton believes Williamson's conversion is only the tip of the iceberg. He believes the entire National party is swaying towards a more interventionist, hands-on approach.
'One reason for this is that we've objectively failed in that we only have a modest growth rate', says Easton. Compared with countries like Australia or Ireland, the New Zealand economy has performed poorly in the global marketplace. 'There has also been a shift in policy making since the arrival of coalition government. One has to be seen to be more responsive to what is actually going on'.
He points to Williamson's recent announcement that roading reforms will be delayed indefinitely as indicative of this. 'Shipley was saying the same thing about water and Bradford about electricity'.
Easton isn't sure how the government will translate its new stance into practice, but he says whatever the outcome of the election the next government will be more interventionist regardless of whether it is lead by Labour or by National.
For Easton this swing towards the centre, politically speaking, can be traced to one event. 'Under MMP one simply has to be more responsive'.
2. 10 June 1999
NEW TELECOM SERVICE TO MANAGE INTERNET TRAFFIC
Telecom is setting up a new free service for residential Internet users and Internet Service Providers (ISPs) which will enable Telecom to more efficiently manage the growing Internet traffic through its network.
General Manager Rob Fyfe said Telecom was becoming increasingly concerned at the potential impact of the huge volumes of Internet traffic on the integrity of the voice network. 'Managing Internet demand effectively is our number one priority', he said.
'We simply cannot risk a situation developing where, for example, customers cannot access the 111 Service in time of need because Internet users are tying-up the voice network'.
However, Telecom also recognised the needs of its Internet customers and the ISPs which support them and was dedicated to providing them with the capacity they needed. 'We think the new service will be a win-win for everyone', he said.
The new service will enable customers to access the Internet by dialing an 0867 number to reach their ISP. The 0867 numbers will allow Internet calls to be carried via Telecom's Intelligent Network and will allow customers to access their chosen ISP within a local calling area.
If ISPs decided to adopt the service, Mr Fyfe said the only impact on customers would be a once-off requirement to change the access number programmed into their PC.
Customers will still be able to dial their ISP using their existing local telephone number, however after the first 10 hours of usage per month, residential customers will incur a two cents per minute calling charge (including GST).
'The purpose of the charge is to incent heavy-user customers to dial in via 0867', Mr Fyfe said, 'helping to ensure that Telecom is able to manage the capacity demands of all its customers'.
The new 0867 service would give ISPs using the Telecom network another choice in the way they provided service to their customers. 'Now they will be able to use 0867 or Telecom's existing IPNet service. Both these services will be free to ISPs' residential customers,' he said.
Telecom was now offering its new 0867 service to ISPs, Mr Fyfe said, and had tried to make the service as valuable as possible for them. 'There are several advantages. ISPs will be able to use the same 0867 number in each local calling area where they offer service, rather than a different number in each area, and they can also make use of call stepping, which will help them manage their own Internet traffic. Importantly, ISPs can still use the same 0867 number if they choose a carrier other than Telecom'.
Introduction of the 0867 service is planned for June/July, with the 10 hour-plus charge in effect from August. 'Telecom will be pro-actively explaining the new service to customers, and will work closely with ISPs which choose 0867, to tell their customers how the service works', Mr Fyfe said.
'0867 will enable us to identify voice and data calls', Mr Fyfe said, 'and route data traffic to manage flows between exchanges. It will also allow us to prioritise calls in times of emergency. As I said, we think this is a win-win solution to what has been a perplexing problem for us', he said.
KEY FACTS ABOUT INTERNET USE
The average length of an Internet call is 22 minutes, compared to 3 minutes for an average voice call.
In March 1999, 23.2% of residential local phone traffic was Internet traffic, up from 16.7% in April 1998.
By 2002 it is anticipated 35-40% of residential local phone traffic will be Internet traffic.
The top 1% average more than 400 hours of use a month.
This top 1% accounts for close to 20% of residential Internet minutes.
In March 1999 there were 274 million minutes of residential Internet traffic, up 63% on the 168 million minutes measured in April last year. Over the same period the voice traffic in the network grew by 9.5%.
Currently there are 3.3 billion residential Internet minutes a year, compared with 10.9 billion residential voice minutes.
3. Telecom's view of its Kiwi Share obligations are expressed by Rob Fyfe, Telecom consumer general manager. In an article in InfoTech Weekly, Issue 402entitled 'Poor access claims wide of mark says Telecom', the following appears:
'The Kiwi Share requires Telecom to maintain a local free-calling option for ordinary residential telephone service, he says, but does not oblige Telecom to provide unlimited free data calls to the Internet. When the Kiwi Share was set in 1989, a customer's 'ordinary residential service' did not include data calls to the Internet.
Mr Fyfe says though Telecom may be entitled to charge for all local calls to the Internet it has not elected to do this. It is continuing to offer residential customers free access to the Internet through an 0867 number and has no plans to charge for that'.
4. 'Consultants called in to look at law on the Internet' InfoTech Weekly, Issue 402.
This is a Commentary published on 29 October 1999.
Citation: Harvey D, 'A Judicial Perspective on Public Access to Case Law on the Internet', Commentary 1999 (3)The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/99-3/harvey.html>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1999_3/harvey/>